Professional Documents
Culture Documents
David Landau*
*
Copyright © 2013 David Landau. Associate Dean for International Programs
and Assistant Professor of Law, Florida State University College of Law. My thanks to
Richard Albert, Carlos Bernal, Joel Colon-Rios, Charlton Copeland, Rosalind Dixon,
Alexandra Huneeus, Sam Issacharoff, Heinz Klug, William Partlett, Yaniv Roznai,
Mark Tushnet, Ozan Varol, Susan Williams, Sam Wiseman, and participants at the
Law & Society Conference in Boston, MA, the Younger Comparativists Committee
Annual Meeting of the American Society of Comparative Law at the University of
Indiana-Indianapolis, the Southeast Legal Scholars Conference in Palm Beach, FL, the
International Symposium on Constitutional Rights at Macquarie University, and
faculty workshops at the University of Wisconsin Law School and at the Center for
Constitutional Democracy at the University of Indiana Maurer School of Law, for
comments on this draft.
189
190 University of California, Davis [Vol. 47:189
TABLE OF CONTENTS
INTRODUCTION ................................................................................... 191
I. DEFINING AND EXPLAINING ABUSIVE CONSTITUTIONALISM ...... 195
A. Defining and Situating Abusive Constitutionalism ............. 195
B. Abusive Constitutionalism by Amendment: Colombia......... 200
C. Abusive Constitutionalism by Replacement: Venezuela ...... 203
D. A Combination of Reform and Replacement: Hungary ........ 208
E. Abusive Constitutionalism and Modern Authoritarianism .. 211
II. A CRITICAL REVIEW OF RESPONSES IN COMPARATIVE
CONSTITUTIONAL LAW ............................................................. 216
A. Militant Democracy and Party Banning ............................. 217
B. Tiered Constitutional Amendment Thresholds.................... 224
C. The Unconstitutional-Constitutional Amendments
Doctrine ............................................................................ 231
D. The Theoretical Gap of Constitutional Replacement ........... 239
III. A CRITICAL REVIEW OF ESTABLISHED AND EMERGING
RESPONSES IN INTERNATIONAL LAW ......................................... 247
A. Democracy Clauses ........................................................... 249
B. Emerging and Proposed Responses at the International
Level: Towards a Global Constitutional Court? ................. 255
CONCLUSION: AN IMPOSSIBLE AGENDA FOR CONSTITUTIONAL
THEORY? .................................................................................. 259
2013] Abusive Constitutionalism 191
INTRODUCTION
One of the central questions in constitutional theory is how
constitutions can be used to better protect against threats to the
democratic order. This question has taken on new urgency since the
Arab Spring, with a fresh wave of new, embattled democracies
throughout the Middle East. This Article defines and grapples with an
increasingly important phenomenon that I call abusive
constitutionalism. Abusive constitutionalism involves the use of the
mechanisms of constitutional change — constitutional amendment
and constitutional replacement — to undermine democracy. While
traditional methods of democratic overthrow such as the military coup
have been on the decline for decades, the use of constitutional tools to
create authoritarian and semi-authoritarian regimes is increasingly
prevalent. Powerful incumbent presidents and parties can engineer
constitutional change so as to make themselves very difficult to
dislodge and so as to defuse institutions such as courts that are
intended to check their exercises as power. The resulting constitutions
still look democratic from a distance and contain many elements that
are no different from those found in liberal democratic constitutions.
But from close up they have been substantially reworked to undermine
the democratic order.
I draw off of recent examples from Hungary, Colombia, and
Venezuela to illustrate the threat. But it is important to note that these
examples only scratch the surface of what is an increasingly routine
occurrence. For example, the Muslim Brotherhood in Egypt recently
used its dominating electoral power in the parliament, constituent
assembly, and presidency, rather than extra-legal means, to craft a
constitution that appears to be very favorable to its own interests.1
Although the civilian government was since removed in a coup,
commentators have argued that the constitution-making experience
was designed to construct Egypt as a competitive authoritarian regime,
where elections are held but the incumbent party is difficult to
dislodge and relatively unchecked in its power.2
1
See David Landau, Constitution-Making Gone Wrong, 64 ALA. L. REV. 923, 971-
80 (2013) [hereinafter Constitution-Making] (summarizing and analyzing the Egyptian
constitution-making process).
2
See, e.g., Abdullah Al-Arian, The Logic Behind Egypt’s New Authoritarianism, AL
JAZEERA, http://www.aljazeera.com/indepth/opinion/2012/12/2012124111437225259.html
(last modified Dec. 5, 2012, 9:48 AM) (examining the constitution-making process in
Egypt and arguing that it may lead to a “new authoritarianism” there); Zachary Laub,
Egypt’s Muslim Brotherhood, COUNCIL ON FOREIGN REL., http://www.cfr.org/africa/egypts-
muslim-brotherhood/p23991?cid=rss-middleeast-egypt_s_muslim_brotherhood-120312
192 University of California, Davis [Vol. 47:189
(last updated July 10, 2013) (noting the Muslim Brotherhood’s reliance on
“majoritarianism” and the broad powers accorded to the president under the new
constitution).
3
Lawrence Repeta, Get Ready for New Battles Over Japan’s Constitution, INT’L J.
CONST. L. BLOG (Feb. 7, 2013), http://www.iconnectblog.com/2013/02/get-ready-for-
new-battles-over-japans-constitution.
4
Scholars have long noted that the Japanese Supreme Court is a weak institution
that does not carry out effective judicial review. The stock reason proceeds from the
absence of political competition in the country — the dominant LDP party has had no
reason to empower a court that would only check its power. See, e.g., David S. Law,
Why Has Judicial Review Failed in Japan?, 88 WASH. U. L. REV. 1425, 1426-28 (2011)
(accepting parts of this story while arguing that it is oversimplified); J. Mark
Ramseyer, The Puzzling (In)dependence of Courts: A Comparative Approach, 23 J. LEGAL
STUD. 721, 722 (1994) (comparing the United States and Japanese Supreme Courts,
and arguing that the lack of independence of the latter can be attributed to an absence
of political competition).
2013] Abusive Constitutionalism 193
5
See generally Noah Feldman, David Landau, Brian Sheppard & Leonidas Rosa-
Suazo, Report to the Truth and Reconciliation Commission of Honduras: Constitutional
Issues (Fla. St. U. Pub. Law & Legal Theory, Research Paper No. 536, 2011), available
at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1915214 (examining both the
abusive constitutionalism of Honduran President Manuel Zelaya and the questionable
constitutionality of his removal from power).
6
See Samuel Issacharoff, Fragile Democracies, 120 HARV. L. REV. 1405, 1408-09
(2007) [hereinafter Democracies].
194 University of California, Davis [Vol. 47:189
7
See infra Part I.A.
8
See infra Parts I.B–D.
9
See infra Part I.E.
10
See infra text accompanying notes 24–29.
196 University of California, Davis [Vol. 47:189
11
The rights dimension is sometimes classified as the degree to which a regime is
liberal, which is sometimes placed in opposition to democracy and at other times seen
as “constitutive” of it. See, e.g., STEPHEN HOLMES, PASSIONS AND CONSTRAINT: ON THE
THEORY OF LIBERAL DEMOCRACY 8 (1995). Given broad practical agreement on the
desirability of rights protections within a state, I do not enter into that debate here. To
be sure, these two dimensions may not exhaust the normative dimensions of
democracy. We might, for example, define democracy with respect to participation as
well, and some analysts of at least the Venezuelan and Ecuadorian regimes below have
made claims that they represent a significant advance in the quality and extent of
participation within those countries. See, e.g., Maxwell Cameron & Kenneth E.
Sharpe, Andean Left Turns: Constituent Power and Constitution Making, in LATIN
AMERICA’S LEFT TURNS: POLITICS, POLICIES, AND TRAJECTORIES OF CHANGE 61, 68
(Maxwell A. Cameron & Eric Hershberg eds., 2010) (analyzing the community
councils and recall referenda within the Venezuelan constitution, and contextualizing
it within the “mobilization function” of Chavez’s project). There is no doubt that the
Constitutions contain novel clauses, such as presidential recall provisions and
provisions including civil society groups in judicial selection, that might be very
useful as the basis for a more participatory democratic order. Whether in fact these
provisions functioned to create a more participatory order is more contestable. See,
e.g., ALLAN R. BREWER-CARÍAS, DISMANTLING DEMOCRACY IN VENEZUELA: THE CHÁVEZ
AUTHORITARIAN EXPERIMENT 227-30 (2010) (noting that the provisions allowing civil
society groups to participate in the selection of Supreme Court justices were not
implemented).
12
See, e.g., Guillermo O’Donnell, Introduction to the Latin American Cases, in
TRANSITIONS FROM AUTHORITARIAN RULE: LATIN AMERICA 3, 5 (Guillermo O’Donnell et
al. eds., 1986) (noting Venezuela and Colombia as exceptions).
13
Even in the classic form of military dictatorship, autocracy and
constitutionalism are not as opposed as is often thought. Constitutionalism may be
valuable for authoritarian regimes in helping to organize and formalize power,
increase legitimacy, control subordinate officials, and attract foreign investment. See
TAMIR MOUSTAFA, THE STRUGGLE FOR CONSTITUTIONAL POWER: LAW, POLITICS, AND
ECONOMIC DEVELOPMENT IN EGYPT 13-15 (2007) (showing how the Egyptian
Constitutional Court was given considerable interpretative power over the
2013] Abusive Constitutionalism 197
recently shown, some coups — such as the one ending military rule in
Egypt — even have pro-democratic effects.20 Thus the
unconstitutional coup, aside from being of declining significance, may
also be overstated as a danger in the modern world. It is, at any rate,
not the best basis for building modern constitutional design and
theory.
The alternative route of taking power constitutionally, and then
using that power to overthrow democracy, is itself not a new idea.
Indeed, perhaps the paradigm anti-canonical event around which
modern comparative constitutional law was built — the Nazi
overthrow of Weimar Germany — occurred using arguably
constitutional means.21 In a terrible economic and unstable political
environment, with a series of coalition governments falling in quick
succession, the Nazis moved from a fringe party to a major movement.
Hitler was appointed chancellor of a coalition government in 1933,
and then convinced both the President and the Reichstag, itself, to
give him the dictatorial powers he needed to create a totalitarian
state.22 This nightmare of constitutionalism being used to destroy
democracy informed much of post-war constitutional thought,
including the concept of “militant democracy” that is considered in
more detail in Part II.23
Nonetheless, there are major differences between the Nazi takeover
of Weimar Germany and the abusive constitutional tools considered in
this Article. Most importantly, the Nazis replaced the Weimar
Republic with a thoroughly authoritarian regime, thus using
constitutionalism to completely destroy democracy. The existence of
clearly authoritarian regimes has decreased through time, again largely
because of the changes in the international environment surveyed
above.24 Yet not of all these regimes have become fully democratic —
20
Ozan Varol, The Democratic Coup d’Etat, 53 HARV. INT’L L.J. 291, 294 (2012)
(exploring coups in Portugal, Turkey, and Egypt that had pro-democratic effects, and
noting that “some military coups are distinctly more democracy-promoting than
others”).
21
See generally DAVID DYZENHAUS, LEGALITY AND LEGITIMACY: CARL SCHMITT, HANS
KELSEN AND HERMANN HELLER IN WEIMAR (1997) (noting that the Nazi takeover of the
Weimar Republic occurred using legal means).
22
See, e.g., David Fontana, Government in Opposition, 119 YALE L.J. 548, 598
(2009) (describing how the Nazis used their power within the government to
“eliminate opposition and eventually repeal the entire Weimar constitution itself”);
Sanford Levinson & Jack M. Balkin, Constitutional Dictatorship: Its Dangers and Its
Design, 94 MINN. L. REV. 1789, 1811 (2010) (noting the use of emergency powers by
the Nazis in the Weimar Constitution).
23
See infra Part II.A.
24
For example, data from Freedom House shows that those regimes classified as
2013] Abusive Constitutionalism 199
“not free” have dropped steadily from forty-six percent of all countries in 1972 to
twenty-four percent in 2012. During the same time period, the percentage of regimes
classified as “partly free” — a reasonable proxy for the “hybrid regimes” discussed in this
paper — has increased from twenty-five percent to thirty percent. See FREEDOM HOUSE,
FREEDOM IN THE WORLD 2013, at 24 (2013), available at http://www.freedomhouse.org/
sites/default/files/FIW%202013%20Charts%20and%20Graphs%20for%20Web.pdf.
25
See, e.g., STEVEN LEVITSKY & LUCAN A. WAY, COMPETITIVE AUTHORITARIANISM:
HYBRID REGIMES AFTER THE COLD WAR 5 (2010) (“Competitive authoritarian regimes
are civilian regimes in which formal democratic institutions exist and are widely
viewed as the primary means of gaining power, but in which incumbents’ abuse of the
state places them at a significant advantage vis-à-vis their opponents.”); Larry
Diamond, Thinking About Hybrid Regimes, J. DEMOCRACY, Apr. 2002, at 21-22 (noting
that regimes like Russia, Venezuela, Turkey, and the Ukraine have elections, but yet
did not appear to be truly democratic); Andreas Schedler, The Logic of Electoral
Authoritarianism, in ELECTORAL AUTHORITARIANISM: THE DYNAMICS OF UNFREE
COMPETITION 1, 3-5 (Andreas Schedler ed., 2006) (coining and explaining the concept
of “electoral authoritarianism”). There is also a related concept discussed by
Guillermo O’Donnell, “delegative democracy,” where leaders are subject to vertical
accountability via elections but not horizontal accountability via checks by courts or
legislatures. See Guillermo O’Donnell, Delegative Democracy, J. DEMOCRACY, Jan. 1994,
at 55-56. The “delegative democracy” concept, however, is different from the kind of
regimes discussed here because it at least assumes a fair shot to periodically oust
incumbents from office.
26
See LEVITSKY & WAY, supra note 25, at 12 (noting that incumbents in
competitive authoritarian regimes “fear a possible opposition victory” and must “work
hard to thwart it”).
27
See id. (noting that “unfair competition” is the key element of the “competitive
authoritarian” regime type, with opposition subject to “surveillance, harassment, and
occasional violence” and with electoral and judicial authorities generally deployed
against them rather than acting as neutral arbiters).
200 University of California, Davis [Vol. 47:189
28
See id. at 27-28.
29
I am not claiming that manipulation of constitutional rules by powerful
incumbents is a new phenomenon. Latin American constitutions, for example, have a
long history of being manipulated for the gain of particular actors. See, e.g., Miguel
Schor, Constitutionalism Through the Looking Glass of Latin America, 41 TEX. INT’L L.J.
1, 4 (2006) (lamenting “[t]he ease with which constitutions can be changed or
ignored” in Latin America).
30
See DAVID BUSHNELL, THE MAKING OF MODERN COLOMBIA: A NATION IN SPITE OF
ITSELF 284-85 (1993).
2013] Abusive Constitutionalism 201
31
See id. at 284.
32
See Kurt Weyland, Neopopulism and Neoliberalism in Latin America: How Much
Affinity?, 24 THIRD WORLD Q. 1095, 1111 (2003) (labeling Uribe a populist who won
election outside of the traditional political party system). As in Venezuela, the
country’s traditional party system had been losing legitimacy through time,
particularly since the enactment of a new Constitution in 1991. See Eduardo Pizarro
Leongómez, Giants with Feet of Clay: Political Parties in Colombia, in THE CRISIS OF
DEMOCRATIC REPRESENTATION IN THE ANDES 78, 78-79 (Scott Mainwaring et al. eds.,
2006).
33
See, e.g., Ann Mason, Colombia’s Democratic Security Agenda: Public Order in the
Security Tripod, 26 SEC. DIALOGUE 391, 396-98 (2003) (explaining Uribe’s “democratic
security” policy and its results in reducing guerrilla violence).
34
See Rodrigo Uprimny, The Recent Transformation of Constitutional Law in Latin
America: Trends and Challenges, 89 TEX. L. REV. 1587, 1598 & n.76 (2011).
35
See CONSTITUCIÓN POLÍTICA DE COLOMBIA [C.P.] art. 375 (requiring a simple
majority of Congress in the first round and an absolute majority in the second round).
36
See Corte Constitucional [C.C.] [Constitutional Court], Octubre 19, 2005,
Sentencia C-1040/05, Gaceta de la Corte Constitucional [G.C.C.] (Colom.), available at
http://www.corteconstitucional.gov.co/relatoria/2005/C-1040-05.htm. The substitution
of the constitution doctrine holds that certain amendments are substantively
unconstitutional because they effectively create a new constitution, rather than
amending the existing one. These changes must be done through Constituent
Assemblies and replacement of the constitution, rather than via amendment. See infra
Part III.B (discussing the doctrine). See generally Carlos Bernal-Pulido, Unconstitutional
Constitutional Amendments in the Case Study of Colombia: An Analysis of the Justification
and Meaning of the Constitutional Replacement Doctrine, 11 INT’L J. CONST. L. 339 (2013)
(examining relevant jurisprudence and developing a justification of the doctrine).
202 University of California, Davis [Vol. 47:189
37
Other institutions often have staggered terms so that no single president will be
able to appoint all of them. For example, the national ombudsman (Defensor del
Pueblo), General Prosecutor, and Public Ministry (Procuraduria) have four-year terms
that are not coterminous with that of the President. See CONSTITUCIÓN POLÍTICA DE
COLOMBIA [C.P.] arts. 249, 281. Justices of the Council of State, Supreme Court, and
Constitutional Court have eight-year terms. See id. art. 233.
38
See C.C., Octubre 19, 2005, Sentencia C-1040/05, §§ 7.10.4.1–7.10.4.2, G.C.C.
(Colom.). The amendment included a requirement that Congress pass a statutory law
regulating the rights of the opposition, and in order to help ensure a level playing
field. See L. 2/04, diciembre 28, 2004, DIARIO OFFICIAL [D.O.] No. 45.775 (Colom.).
39
See C.C., Sentencia C-1040/05, §§ 7.10.4.1–7.10.4.2.
40
See L. 1354/09, septiembre 8, 2009, D.O. No. 47.466 (Colom.).
41
See Popularidad de Alvaro Uribe cae 6 puntos y se ubica en 64 por ciento, su nivel
mas bajo en 7 anos, EL TIEMPO (Colom.) (Nov. 6, 2009), http://www.eltiempo.com/
archivo/documento/CMS-6527007http://www.eltiempo.com/archivo/documento/CMS-
6527007.
42
See C.C., febrero 26, 2010, Sentencia C-141/10, pt. VI, G.C.C. (Colom.),
available at http://www.corteconstitucional.gov.co/relatoria/2010/c-141-10.htm.
2013] Abusive Constitutionalism 203
43
See id. §§ 6.3.6.1, 6.3.7 (explaining the influence that a twelve-year presidency
would have on the Central Bank, Public Ministry, Constitutional Court, Prosecutor,
and other institutions).
44
See id.
45
See Eduardo Posada-Carbó, Colombia After Uribe, J. DEMOCRACY, Jan. 2011, at
137.
46
See, e.g., David Landau, Political Institutions and Judicial Role in Comparative
Constitutional Law, 51 HARV. INT’L L.J. 319, 338-39 (2010) (describing the role of the
Constitutional Court and other institutions like the Ombudsman within the
Colombian constitutional order).
47
See Michael Coppedge, Venezuela: Popular Sovereignty Versus Liberal
Democracy, in CONSTRUCTING DEMOCRATIC GOVERNANCE IN LATIN AMERICA 165, 167
(Jorge I. Dominguez & Michael Shifter eds., 2nd ed. 2003).
48
The country had lived under a pacted two-party democracy for several decades,
with the two major parties alternating power but excluding certain social groups —
particularly on the right — from exercising political control. The system enjoyed
substantial legitimacy for long periods of time, but, by the time Chavez was elected,
204 University of California, Davis [Vol. 47:189
had lost much of this due to economic crisis and because of a sense that the system
was serving only the interests of insiders. See generally MICHAEL COPPEDGE, STRONG
PARTIES AND LAME DUCKS: PRESIDENTIAL PARTYARCHY AND FACTIONALISM IN VENEZUELA
(1994) (explaining how the Venezuelan “partyarchy” over time eroded the legitimacy
of the regime).
49
See Coppedge, supra note 47, at 179 tbl.8.5 (showing that opposition group
continued to hold 118 of 188 seats in the House and 67 of 100 seats in the Senate).
50
See CONSTITUCIÓN DE LA REPÚBLICA DE VENEZUELA, arts. 245, 246 (1961).
51
See Caso. Junta Directiva de la Fundación para los Derechos Humanos, Corte
Suprema de Justicia: Sala Político-Administrativa [Supreme Court of Justice: Political-
Administrative Chamber], 19 de Enero, 1999 (Venez.), reprinted in 77-80 REVISTA DE
DERECHO PUBLICO 56, 56-57 (1999).
52
Caso. Gerardo Blyde Pérez, Corte Suprema de Justicia: Sala Político-
Administrativa [Supreme Court of Justice: Political-Administrative Chamber], 23 de
Marzo, 1999 (Venez.), available in 77-80 REVISTA DEL DERECHO PUBLICO 83, 84 (1999).
This language was used in a clarification of a ruling in an earlier case in which the
Court struck down the referendum questions formulated by Chavez. The second
question asked the public to vote on the convocation of a Constituent Assembly under
electoral rules that would subsequently be formulated by him. See Caso. Gerardo
Blyde, contra la Resolucion No 990217-32 del Consejo Nacional Electoral (17-2-99),
Corte Suprema de Justicia: Sala Político-Administrativa [Supreme Court of Justice:
Political-Administrative Chamber], 18 de Marzo, 1999 (Venez.), reprinted in 77-80
REVISTA DE DERECHO PUBLICO 73, 78-82 (1999). The Court held that this formula was
unconstitutional, because it would not guarantee that the Assembly would represent
2013] Abusive Constitutionalism 205
63
See infra Part III.A.
64
See Agustín Grijalva, Courts and Political Parties: The Politics of Constitutional
Review in Ecuador 151-52 (April 14, 2010) (unpublished Ph.D. dissertation,
University of Pittsburgh) (on file with author), available at http://d-scholarship.pitt.
edu/7334/1/grijalva_agustin_2010_etd.pdf.
65
See Catherine M. Conaghan, Ecuador: Correa’s Plebiscitary Presidency, J.
DEMOCRACY, Apr. 2008, at 51.
66
See id. at 52. Moreover, when the Constitutional Tribunal attempted to
intervene on behalf of the removed Congressmen, the new Congress — which Correa
controlled — simply removed the justices by claiming that their terms had expired.
See Grijalva, supra note 64, at 153.
67
See Newman, supra note 59, at 27-28.
68
Steven Levitsky & James Loxton, Populism and Competitive Authoritarianism in
the Andes, 20 DEMOCRATIZATION 107, 121 (2013). Conaghan instead refers to Ecuador
as a “plebiscitary” democracy, explaining how Correa succeeded in weakening all
other branches of government and governing by taking his case directly to the people.
See Conaghan, supra note 65, at 47-48. Regardless of label, however, Correa’s actions
have weakened democracy in a particular way.
208 University of California, Davis [Vol. 47:189
69
The voting rules in place gave majoritarian boosts to the party gaining a
plurality of votes, thus helping the Fidesz gain extra seats. See Miklós Bánkuti et al.,
Disabling the Constitution, J. DEMOCRACY, July 2012, at 139.
70
See, e.g., Csilla Kiss, From Liberalism to Conservatism: The Federation of Young
Democrats in Post-Communist Hungary, 16 E. EUR. POL. & SOC’Y 739, 741-44 (2002)
(tracing the ideological shifts in the Fidesz).
71
The Parliament also passed a number of laws that had important effects on the
democratic order. For example, a set of media laws concerned critics, as they
potentially reduced the independence of media outlets. See, e.g., Judy Dempsey,
Hungary Waves off Criticism Over Media Laws, N.Y. TIMES (Dec. 25, 2010),
http://www.nytimes.com/2010/12/26/world/europe/26hungary.html?_r=0.
72
See Gábor Halmai, Unconstitutional Constitutional Amendments: Constitutional
Courts as Guardians of the Constitution?, 19 CONSTELLATIONS 182, 191-92 (2012).
73
See id. at 195-96. The majority of the Court suggested that there were
immutable parts of the constitutional order, but held that it was beyond its power to
actually enforce those limits.
2013] Abusive Constitutionalism 209
74
Andrew Arato, Post-Sovereign Constitution-Making in Hungary: After Success,
Partial Failure, and Now What?, 26 S. AFR. J. HUM. RTS. 19, 43 (2010). The Hungarian
constitutional situation was peculiar; the country never wrote a new constitution
when it transitioned to democracy, but instead maintained the old, Communist-era
constitution with massive amendments. The old Constitution thus openly
contemplated its replacement, but no such replacement materialized during the first
twenty years of the democratic regime. See id. at 27-28 (exploring why no permanent
constitution was ever enacted). The Fidesz also used its two-thirds majority to amend
a part of the old Constitution, which had probably already ceased to have any effect,
requiring approval of four-fifths of Parliament in order to “establish the rules and
procedures for the preparation of a new Constitution.” See A MAGYAR KÖZTÁRSASÁG
ALKOTMÁNYA [CONSTITUTION OF THE REPUBLIC OF HUNGARY] (1995), art. 24, cl. 5
(stating that the four-fifths requirement would expire when the Parliament elected in
1994 ended). But see Andew Arato, Arato on Constitution-Making in Hungary and the
4/5ths Rule, COMP. CONSTS. BLOG (Apr. 6, 2012, 7:19 AM), http://www.
comparativeconstitutions.org/2011/04/arato-on-constitution-making-in-hungary.html
(arguing that the four-fifths rule might still have life).
75
See EUR. COMM’N FOR DEMOCRACY THROUGH LAW (VENICE COMM’N), Opinion on
Three Legal Questions Arising in the Process of Drafting the New Constitution, 86th Sess.,
Op. No. 614/2011, at 4-5 (Mar. 28, 2011), http://www.venice.coe.int/webforms/
documents/?pdf=CDL-AD(2011)001-e (raising concerns about the lack of opposition
participation in the process, the lack of transparency, and the tight time-frame within
which the Constitution was being drafted).
76
See MAGYARORSZÁG ALAPTÖRVÉNYE [FUNDAMENTAL LAW OF HUNGARY]
[CONSTITUTION] (2011), art. 24, § 4 (expanding the size of the Court from eleven to
fifteen members).
77
Note that the National Judicial Office was created and defined by a cardinal law,
rather than by the Constitution. The Constitution required the creation of cardinal
laws to govern various areas, and the Constitution requires a two-thirds majority to
either write or amend these cardinal laws. Id. art. T, § 4; see also EUR. COMM’N FOR
DEMOCRACY THROUGH LAW (VENICE COMM’N), Opinion on Act CLXII of 2011 on the Legal
Status and Remuneration of Judges and Act CLXI of 2011 on the Organisation and
Administration of Courts of Hungary, 90th Sess., Op. No. 663/2012, at 7-8 (Mar. 19,
2012), http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2012)001-e
210 University of California, Davis [Vol. 47:189
82
Margit Feher, Hungary Court Throws out Mandatory Voter Registration, WALL ST.
J. EMERGING EUR. BLOG (Jan. 4, 2013, 3:00 PM), http://blogs.wsj.com/emergingeurope/
2013/01/04/hungary-court-throws-out-mandatory-voter-registration/.
83
See EUR. COMM’N FOR DEMOCRACY THROUGH LAW (VENICE COMM’N), New
Constitution of Hungary, supra note 78, at 28-29 (giving a balanced assessment of the
new constitution, praising certain elements while expressing serious concern about
the reforms to the judiciary and certain other elements).
84
See sources cited supra note 81 (explaining the European Court of Justice case
striking down the lowered mandatory retirement age for judges); see also EU Opens
Legal Action Against Hungary Over New Laws, BBC NEWS, http://www.bbc.co.uk/
news/world-europe-16593827 (last updated Jan. 17, 2012, 10:40 AM).
85
See, e.g., Andrew Clapham, Council of Europe Cites Hungary’s Progress on
Judiciary, Media, BLOOMBERG (Jan. 29, 2013, 4:49 AM), http://www.bloomberg.com/
news/2013-01-29/council-of-europe-cites-hungary-s-progress-on-judiciary-media.html
(noting amendments to the laws in both areas in light of discussions with European
officials); EU Closes Central Bank Infringement Case, EUBUSINESS.COM (July 19, 2012,
3:46 PM), http://www.eubusiness.com/news-eu/hungary-economy.ht0/ (stating that
amendments to the Central Bank law had allayed the concerns of the European
Commission).
212 University of California, Davis [Vol. 47:189
86
See LEVITSKY & WAY, supra note 25, at 78-81 (arguing that “there is reason to be
skeptical about the impact of the institutional design in competitive authoritarian
regimes”).
87
Id. at 79.
88
See William Case, Manipulative Skills: How Do Rulers Control the Electoral
Arena?, in ELECTORAL AUTHORITARIANISM, supra note 25, at 95, 99-104 (listing
techniques for controlling elections that generally fall short of election-day fraud).
89
For other examples of the use of constitutionalism in the construction of
weakly democratic regimes, see, for example, Landau, Constitution-Making, supra note
1, at 938-39 (examining this phenomenon in Bolivia, Venezuela, and perhaps now
Egypt); William Partlett, The Dangers of Popular Constitution-Making, 38 BROOK. J.
INT’L L. 193, 209-33 (2012) (discussing Russia, Belarus, Ukraine, and other post-
Soviet countries).
90
See supra text accompanying note 36.
91
See supra notes 59, 67 (noting the increase in executive power in both
Venezuela and Ecuador).
2013] Abusive Constitutionalism 213
92
See supra text accompanying notes 71–82.
93
See supra text accompanying notes 56–57.
94
See supra note 76.
214 University of California, Davis [Vol. 47:189
95
See, e.g., Rosalind Dixon, Constitutional Amendment Rules: A Comparative
Perspective, in COMPARATIVE CONSTITUTIONAL LAW 96, 97-102 (Tom Ginsburg &
Rosalind Dixon eds., 2011) (explaining the various purposes behind constitutional
amendment rules).
96
As an example, one might consider Russia, where then-President Boris Yeltsin
was able to take the constitution-making process out of the elected Parliament and
into a handpicked special Assembly after winning a popular referendum. See Partlett,
supra note 89, at 210-26 (explaining the Russian constitution-making process and
how it went wrong); see also Lee Epstein et al., The Role of Constitutional Courts in the
Establishment and Maintenance of Democratic Systems of Government, 35 LAW & SOC’Y
REV. 117, 136-37 (2001) (explaining how the Russian constitutional court was
nullified as part of the Russian constitution-making process). The constitutional order
Yeltsin constructed, which contained both a very strong president and weak checking
institutions, has continued to leave its imprint on Russian politics, long after Yeltsin
left the scene. Russia continues to be a competitive authoritarian regime under Putin.
See Valerie J. Bunce & Sharon L. Wolchik, Defeating Dictators: Electoral Change and
Stability in Competitive Authoritarian Regimes, 62 WORLD POL. 43, 44 (2010) (noting
that Russia remains a competitive authoritarian regime).
97
See Miklós Bánkuti et al., supra note 69, at 138-39.
98
See Hungary Government Party Support Lowest in Over a Decade — Poll, REUTERS
2013] Abusive Constitutionalism 215
the kind of change that the Fidesz was subsequently able to carry out.
Similarly, in Venezuela, Chavez won an election with only fifty-six
percent of the national vote. His candidates then won sixty percent of
votes in an election for a Constituent Assembly that was largely
boycotted by the opposition, but this translated into over ninety
percent of seats due to electoral rules handcrafted by Chavez himself.99
The Constituent Assembly process, in which a single electoral group
steamrolled the insignificant opposition, was not representative of any
strong social consensus in favor of Chavez’s formula. Like the Fidesz,
he effectively capitalized on a momentary surge in popularity to alter
the shape of the democracy over the long haul.
The argument against abusive constitutionalism does not depend on
the particular policies pursued by these actors, but merely on the fact
that they are making their regimes significantly less democratic.
Chavez and Correa are leftist populists, Uribe is a right-leaning
neoliberal, and the Fidesz party is a right-wing nationalist movement.
There may be merit in some of the policies followed by these actors,
and not in others.100 Regardless of policy orientation, the deterioration
of both the public’s ability to vote these incumbents out and the
weakening of horizontal checks that are supposed to hold them
accountable is a substantial cause for concern. The absence of both
vertical and horizontal checks appears to be related to a long list of
negative outcomes: deterioration in the quality of policy, less
responsiveness of politicians to the will of the public, and a higher
incidence of human rights abuses.101
If I am correct both that the creation of hybrid forms of
authoritarianism through mechanisms of constitutional change is
increasingly common and that these kinds of authoritarian regimes
represent a threat about which we ought to be concerned, then the
remaining key question is how to stop it. This is, of course, the million
dollar question, and I spend the rest of this article tackling it. Parts II
and III survey mechanisms of democratic defense in both comparative
constitutional law and international law. My core conclusion is
unsettling — the existing tools at both levels are not very effective at
controlling this threat. Moreover, the flexible nature of abusive
constitutionalism (for example, the fact that there are often multiple
ways for would-be authoritarians to achieve the same goal) makes it a
difficult threat to combat.
102
I bracket here the rich literature on how different forms of government
structure might affect a polity’s likelihood of downfall. See, e.g., Juan L. Linz,
Presidential or Parliamentary Democracy: Does It Make a Difference?, in THE FAILURE OF
PRESIDENTIAL DEMOCRACY 3 (Juan L. Linz & Arturo Valenzuela eds., 1994)
(concluding that presidential systems are more likely to be overthrown than
parliamentary systems, and theorizing reasons for this difference).
2013] Abusive Constitutionalism 217
orders. It was invented in Germany following the end of World War II,
and the obvious impetus was the way that the inter-war Weimar
Republic was undermined and then overthrown by the anti-
democratic Nazi party during the 1920s and 1930s.103 Militant
democracy is a rich concept with many elements, centered on a refusal
to allow anti-democratic elements to use the freedoms and tools of
democracy in order to destroy the democratic order.104
However, most recent scholarship has focused on party-banning, or
the ability of a constitutional court to dissolve parties that are
considered essentially anti-democratic. The German Basic Law, for
example, gives its Constitutional Court the power to ban parties that
“by reason of their aims or the behavior of their adherents, seek to
undermine or abolish the free democratic basic order or to endanger
the existence of the Federal Republic of Germany.”105 This provision
was used to ban Neo-Nazi and Communist parties in the 1950s,106 and
103
The Nazi experience also impelled structural innovations in the design of
parliamentary politics, such as the constructive vote of no confidence, which requires
that actors seeking to bring down a democratic regime must first suggest an
alternative government. See Sanford Levinson & Jack M. Balkin, Constitutional
Dictatorship: Its Dangers and Its Design, 94 MINN. L. REV. 1789, 1860 (2010)
(discussing the possibilities for adopting the constructive vote of no confidence in the
United States as a way to allow Congress to limit presidential power).
104
The party-banning clause emphasized here does not exhaust the reach of the
model, but it is its most canonical element. The model, for example, also allows for
restrictions on fundamental rights and the freedom of association for individuals and
groups that take action against the democratic order. See GRUNDGESETZ FÜR DIE
BUNDESREPUBLIK DEUTSCHLAND [GRUNDGESETZ] [GG] [BASIC LAW], May 23, 1949, BGBl.
I (Ger.) arts. 9, 11, 18. The German Constitutional Court has referred to the concept
in contexts that are very far afield from party-banning, for example in the data mining
context. Thus, the term has been given recent relevance as part of a package of anti-
terrorism measures. See, e.g., Russell A. Miller, Balancing Security and Liberty in
Germany, 4 J. NAT’L SEC. L. & POL’Y 369, 371-75 (2010) (looking at constitutional
provisions allowing limitations on association and freedom of movement in light of
post-9/11 security concerns); András Sajó, From Militant Democracy to the Preventive
State?, 27 CARDOZO L. REV. 2255, 2255-56 (2006) (theorizing a broad set of responses
of a militant democracy to terrorist threats); Paul M. Schwartz, Regulating Govermental
Data Mining in the United States and Germany: Constitutional Courts, the State, and New
Technology, 53 WM. & MARY L. REV. 351, 380-81 (2011) (considering German
jurisprudence on data screening practices in light of militant democracy principles).
105
GRUNDGESETZ FÜR DIE BUNDESREPUBLIK DEUTSCHLAND [GRUNDGESETZ] [GG]
[BASIC LAW], May 23, 1949, BGBl. I (Ger.) art. 21.
106
See Communist Party Case, 5 BVerfGE 85 (1956); Socialist Reich Party Case, 2
BVerfGE 1 (1952), in THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF
GERMANY 286, 286-89 (Donald P. Kommers & Russell A. Miller eds., 3d ed. 2012). See
generally Judith Wise, Dissent and the Militant Democracy: The German Constitution and
the Banning of the Free German Workers Party, 5 U. CHI. L. SCH. ROUNDTABLE 301, 302-
03 (1998) (discussing the latter decision).
2013] Abusive Constitutionalism 219
107
See, e.g., Patrick Macklem, Militant Democracy, Legal Pluralism, and the Paradox
of Self-Determination, 4 INT’L J. CONST. L. 488, 493-94 (2006) (surveying constitutional
provisions allowing for party banning).
108
See Issacharoff, Democracies, supra note 6, at 1466-67.
109
See Gregory H. Fox & Georg Nolte, Intolerant Democracies, 36 HARV. INT’L L.J.
1, 2 (1995).
110
See supra Part I.B–D.
111
Cf. Jamie O’Connell, Common Interests, Closer Allies: How Democracy in Arab
States Can Benefit the West, 48 STAN. J. INT’L L. 341, 389 (2012) (stating that the
Muslim Brotherhood has adopted “notably democratic internal procedures”).
220 University of California, Davis [Vol. 47:189
112
Consider the movements led by Chavez in Part I.C or the Fidesz in Part I.D —
neither was ideologically extreme and both received substantial popular support.
113
See RUTH BERINS COLLIER & DAVID COLLIER, SHAPING THE POLITICAL ARENA:
CRITICAL JUNCTURES, THE LABOR MOVEMENT, AND REGIME DYNAMICS IN LATIN AMERICA
487-88 (1991) (referring to the “impossible game” as the problem of the Argentine
Peronist Party being unable to win elections because of its repugnance to elites despite
previously being the majority party).
114
The discussion here does not exhaust the Turkish experience with party-
banning. In another series of decisions, for example, the country banned separatist
parties associated with the Kurds. See Ödül Celep, The Political Causes of Party
Closures in Turkey, PARLIAMENTARY AFFAIRS 1, 13-16 (2012) (collecting and discussing
decisions). These decisions raise questions of constitutional theory that are important
but distinct — many of those who would defend bans on anti-democratic parties see
bans of minority separatist parties as inherently more problematic.
2013] Abusive Constitutionalism 221
115
See Saban Taniyici, Transformation of Political Islam in Turkey: Islamist Welfare
Party’s Pro-EU Turn, 9 PARTY POL. 463, 471-72 (2003).
116
See id. at 466, 472.
117
See Mehran Kamrava, Pseudo-Democratic Politics and Populist Possibilities: The
Rise and Demise of Turkey’s Refah Party, 25 BRIT. J. MIDDLE E. STUD. 275, 275 (1998)
(referring to this incident as a “soft coup”).
118
See Refah Partisi (The Welfare Party) v. Turkey [GC], nos. 41340/98, 41342/98,
41343/98, 41344/98, § 133-36, ECHR 2003. This was in fact a grand chamber decision
upholding an earlier decision made by a panel. See generally Refah Partisi (The
Welfare Party) v. Turkey, nos. 41340/98, 41342/98, 41343/98, 41344/98, ECHR 2001
(laying out the prior panel decision).
119
Refah Partisi, ECHR 2003, § 99.
120
Id. § 102.
121
A substantial literature examines the decision from a religious perspective,
debating whether the Court overreacted to the threat of Islamic parties in Europe and
thus allowed undue infringement on religious liberty. See, e.g., Peter G. Danchin,
Islam in the Secular Nomos of the European Court of Human Rights, 32 MICH. J. INT’L L.
663, 699 (2011) (arguing that “[t]he Court’s analysis misconstrues the true nature of
the conflict in Turkey, which, quite apart from questions of liberal rights and
freedoms, centers on the locus of Islam as a source of political legitimacy among
222 University of California, Davis [Vol. 47:189
that the party already had substantial support and had joined a
majority coalition, and was likely poised to win large majorities in the
near future. To the Court, this strengthened the case for a ban because
it showed that the party might be able to actually implement its
program; the Court did not, however, discuss the difficulties involved
in banning an already very popular party.122 The Court then discussed
in detail the party’s program, finding that its religious orientation and
especially its adherence to variants of sharia law rendered it anti-
democratic. The Court noted that members of the party had made
statements suggesting alteration of the legal system to recognize
religious-based law to govern status and certain other private law
questions and had praised sharia law.123 At root, the Court thought
that the platform was religious in a way that was incompatible with
democracy: “The Court concurs in the . . . view that sharia is
incompatible with the fundamental principles of democracy.”124
The decision thus lays bare both the line-drawing and size
problems. First, it is unclear whether the Welfare Party’s platform
really was anti-democratic. The allowance of separate religious status
courts in certain areas is used in many democracies, including
Israel,125 and the modern Middle East is working towards finding a
role for sharia law within democratic orders.126 While the Court did
find that some members of the party had suggested, in ambiguous
127
See Refah Partisi, ECHR 2003, § 130-31 (concluding, after canvassing relevant
speeches, that “there was ambiguity in the terminology used to refer to the method to
be employed to gain political power”).
128
See Birol A. Ye ilada, The Virtue Party, 3 TURKISH STUD. 62, 75 tbl.1 (2002).
129
See Asli Ü. Bâli, The Perils of Judicial Independence: Constitutional Transition and
the Turkish Example, 52 VA. J. INT’L L. 235, 281 n.156 (2012).
130
See Ergun Özbudun, From Political Islam to Conservative Democracy: The Case of
the Justice and Development Party in Turkey, 11 S. EUR. SOC’Y & POL. 543, 545-46
(2006).
131
See Meltem Müftüler-Baç & E. Fuat Keyman, Turkey Under the AKP: The Era of
Dominant-Party Politics, J. DEMOCRACY, Jan. 2012, at 87.
132
See, e.g., Issacharoff, Democracies, supra note 6, at 1446-47 (arguing that
“[u]nder the circumstances, it is difficult to imagine a better outcome”); Özbudun,
supra note 130, at 548 (finding that the movement moderated through its successive
emanations and its platform is now “hardly distinguishable from a liberal or
conservative democratic party”).
224 University of California, Davis [Vol. 47:189
133
See Ali Çarko lu, A New Electoral Victory for the ‘Pro-Islamists’ or the ‘New
Centre-Right’? The Justice and Development Party Phenomenon in the July 2007
Parliamentary Elections in Turkey, 12 S. EUR. SOC’Y & POL. 501, 516-17 (2007) (raising
the possibility that Turkey “is moving towards a dominant party system similar to
India, Japan or Italy before the 1990s”).
134
See, e.g., Sebnem Arsu, Arrest of Prosecutor in Turkey Exposes Tensions Between
Secular and Religious Turks, N.Y. TIMES (Feb. 20, 2010), http://www.nytimes.com/
2010/ 02/21/world/europe/21turkey.html?_r=0 (detailing questionable arrests).
135
Turkish scholars debate whether the reforms to the Constitutional Court and
other tribunals packed it or simply constituted a liberalization and democratization of
the judiciary. See, e.g., Bâli, supra note 129, at 295-309 (summarizing the debate and
arguing that the reforms liberalized the Court’s composition and took away
authoritarian elements in its design).
136
See Adrian Vermeule, Second Opinions and Institutional Design, 97 VA. L. REV.
2013] Abusive Constitutionalism 225
1435, 1438 (2011) (noting how difficult and time-consuming the U.S. amendment
process is); see also DONALD S. LUTZ, PRINCIPLES OF CONSTITUTIONAL DESIGN 170 tbl.5.7
(2006) (constructing an index showing that the United States has the second most
difficult amendment process out of a list of countries); Michael J. Klarman, What’s So
Great About Constitutionalism?, 93 NW. U. L. REV. 145, 184 (1998) (arguing that the
Article V process is so difficult to use as to make change practically impossible).
137
But see John Ferejohn & Lawrence Sager, Commitment and Constitutionalism, 81
TEX. L. REV. 1929, 1954-56 (2003) (noting that Article V “has become the
constitutional provision commentators love to hate” and defending the provision as
helping to maintain the core substantive commitments of the constitutional order).
138
See LUTZ, supra note 136, at 162 tbl.5.2; see also TOM GINSBURG ET AL., THE
ENDURANCE OF NATIONAL CONSTITUTIONS 140 fig.6.4 (2009) (showing a U-shaped
relationship, and arguing that the ideal level of difficulty from the standpoint of
endurance is roughly the Indian amendment process, which requires a two-thirds
majority of Congress for most topics and, in addition, the approval of one-half of the
states for certain topics).
139
See LUTZ, supra note 136, at 156.
140
See BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 6-7 (1991) (arguing that
major constitutional change in the United States has taken place in extra-
constitutional ways rather than through the amendment process, as the Constitution
is remade in certain “constitutional moments” by combinations of the public, political
actors, and the courts); see also Akhil Reed Amar, The Consent of the Governed:
Constitutional Amendment Outside Article V, 94 COLUM. L. REV. 457, 459 (1994)
(arguing that Article V procedures were not intended to be the exclusive avenue of
constitutional reform, and presuppose a “background legal right of the people” to
“alter or abolish Government via the proper legal procedures”). But see Henry P.
Monaghan, We the People[s], Original Understanding, and Constitutional Amendment, 96
COLUM. L. REV. 121, 121-22 (1996) (rejecting Amar’s argument based on an analysis of
the intent of the framers).
141
See, e.g., Sujit Choudhry, Ackerman’s Higher Lawmaking in Comparative
Constitutional Perspective: Constitutional Moments as Constitutional Failures?, 6 INT’L J.
CONST. L. 193, 228-30 (2008) (arguing that the Quebec secession case represented a
case of extra-constitutional amendment by the Canadian Supreme Court, and calling
on scholars to identify other such cases).
226 University of California, Davis [Vol. 47:189
142
See Richard Albert, Constitutional Handcuffs, 42 ARIZ. ST. L.J. 663, 709-10
(2010) [hereinafter Handcuffs] (advocating for such a system to protect certain
important provisions).
143
See S. AFR. CONST., 1996, art. 74. The regime is a bit more complex — Chapter
2 of the Constitution requires approval of two-thirds of the Parliament plus the assent
of the National Council of Provinces, with the agreement of at least six provinces. See
id. Any other provision may be amended with the assent of two-thirds of Parliament,
or a vote of the National Council of Provinces if the provision concerns their interests.
See id.
144
See GRUNDGESETZ FÜR DIE BUNDESREPUBLIK DEUTSCHLAND [GRUNDGESETZ] [GG]
[BASIC LAW], May 23, 1949, BGBl. I (Ger.) art. 79, § 3 (“Amendments to this Basic
Law affecting the division of the Federation into Länder, their participation on
principle in the legislative process, or the principles laid down in Articles 1 and 20
shall be inadmissible.”); CONSTITUTION OF THE REPUBLIC OF HONDURAS [CH] art. 374
(making certain constitutional provisions completely unamendable).
2013] Abusive Constitutionalism 227
145
See, e.g., LUTZ, supra note 136, at 168 tbl.5.6 (constructing an index of difficulty
that adds significant points for constitutional amendment processes requiring popular
referenda).
146
See, e.g., John Ferejohn, The Politics of Imperfection: The Amendment of
Constitutions, 22 LAW & SOC. INQUIRY 501, 523 (1997) (finding that popular
involvement via ratification adds little difficulty to amendment processes).
147
See supra Part I.C.
148
See supra Part I.D.
149
See Albert, Handcuffs, supra note 142, at 711 (noting and recommending a
regime of “sequential approval,” where citizens have to manifest their will to alter the
constitution in more than one vote, and that vote is separated by an interval of time);
Vermeule, supra note 136, at 1438 (noting one potential benefit of Article V
amendment procedures, which is that their slowness may induce “sober second
thoughts”).
228 University of California, Davis [Vol. 47:189
150
As an example, the Colombian Constitution requires two separate votes on a
constitutional amendment, and requires that those votes be taken during separate
legislative sessions. The first vote requires a simple majority of Congress, while the
second requires an absolute majority. See CONSTITUCIÓN POLÍTICA DE COLOMBIA [C.P.]
art. 375. Although this model technically requires two separate votes, these votes need
be separated by very little time — Congress can, and often does, take the first vote
towards the end of one legislative session, and take the other only a few days or weeks
later at the beginning of the next. Moreover, since each legislative session is only one
year, the requirement does not normally interpose a legislative or presidential election.
See generally James Melton, Constitutional Amendment Procedures: A Summary and
Critique of Existing Measures (June 18, 2012) (unpublished working paper) (on file
with author), available at http://www.ucl.ac.uk/~uctqjm0/Files/melton_amendment.pdf
(commenting on the problems with measuring temporal limitations in the literature).
151
This model is used, for example, in Greece, which requires that amendments be
voted on by two different Parliaments via two different voting thresholds — fifty
percent in one vote and sixty percent in the other. See 1975 SYNTAGMA [SYN.]
[CONSTITUTION] 110 (Greece).
152
Empirically, there is no research on this question. Researchers have extensively
considered the relationship between different kinds of amendment regimes and the
amendment rate, but have had trouble measuring temporal limitations. See Melton,
supra note 150, at 28 (noting that temporal limitations are “trivialized by existing
measures of amendment difficulty”).
2013] Abusive Constitutionalism 229
153
See GRUNDGESETZ FÜR DIE BUNDESREPUBLIK DEUTSCHLAND [GRUNDGESETZ] [GG]
[BASIC LAW], May 23, 1949, BGBl. I (Ger.) art. 79, § 3 (protecting the division of the
state into Länder and certain basic principles such as human dignity from ever being
amended).
154
See S. AFR. CONST., 1996, art. 74.
155
See supra Part II.A (considering the post-war German model of militant
democracy, which aims to eliminate anti-democratic threats from the democratic
order).
156
See supra Part I.E (noting that competitive authoritarian regimes gain power not
by proposing a radically different vision for the state, but by disabling opposition
parties and packing or disabling checking institutions).
157
See supra Part III.A (noting the entrenchment of presidential term limits in
230 University of California, Davis [Vol. 47:189
Honduras).
158
As an example, consider the Hungarian case in Part I.D — the Fidesz party
utilized a variety of alternative means to undermine the Constitutional Court and the
judiciary, including packing the court, stripping part of its jurisdiction, and lowering
the retirement age for judges. Some of these changes required constitutional alteration
or replacement, but others required mere statutory changes.
2013] Abusive Constitutionalism 231
159
See supra Part I.B.
160
See supra text accompanying notes 35–43.
161
A woman denied the ability to wear a headscarf then took her case to the
European Court of Human Rights, which ruled that her right to religious freedom had
not been infringed. See Leyla ahin v. Turkey [GC], no. 44774/98, § 122-23, ECHR
2005; see also Cindy Skach, International Decision, 100 AM. J. INT’L L. 186, 195 (2006)
(arguing that the case illustrates a complex interrelationship between domestic and
international law on this issue). The case lies somewhere between the non-textual
unconstitutional-constitutional amendments doctrine constructed by the Indian and
Colombian Courts and the tiering practice noted above. The Turkish constitution
does make some provisions unamendable, and this includes the provision prohibiting
amendments to Article 2, which lays out the “basic characteristics” of the state and
defines Turkey as being “a democratic, secular and social State.” See Yaniv Roznai &
Serkan Yolcu, An Unconstitutional Constitutional Amendment — The Turkish
Perspective: A Comment on the Turkish Constitutional Court’s Headscarf Decision, 10
INT’L J. CONST. L. 175, 194 (2012). But the court interpreted this doctrine to allow it to
strike down constitutional amendments found elsewhere in the Constitution that
infringe on the secular principle, which makes its usage very similar to the non-
textual, common-law like usage of the Indian and Colombian Courts.
162
See Strauss v. Horton, 46 Cal. 4th 364, 444 (2009) (finding that the Proposition
does not constitute a constitutional revision because it does not undertake “far
reaching change in the fundamental governmental structure or the foundational
power of its branches as set forth in the Constitution”). Strauss is in fact part of a long
line of California cases interpreting the amendment/revision distinction. See, e.g.,
Prof’l Eng’rs in Cal. Gov’t v. Kempton, 40 Cal. 4th 1016, 1046-47 (2007) (concluding
that a constitutional change dealing with the contracting of architectural and
engineering services is not a revision); Legislature v. EU, 54 Cal. 3d 492 (1991)
232 University of California, Davis [Vol. 47:189
(holding that a proposition which adopted legislative term limits, limited spending on
legislative staff, and restricted state retirement benefits was not a revision); Raven v.
Deukmejian, 52 Cal. 3d 336, 349-55 (1990) (finding that a sweeping set of reforms to
criminal procedure rules under the state constitution, intended to overturn numerous
pro-defendant rulings of the California State Supreme Court, did indeed constitute a
revision and thus was invalidated).
163
An amendment may be proposed either by a two-thirds vote of the legislature,
or by petition of eight percent of voters. In either case, the amendment is approved
with the consent of a majority of voters. A revision is proposed by either a two-thirds
vote of the legislature or a Constituent Assembly (which itself must be called by a
two-thirds vote of the legislature followed by majority approval of the electorate). See
CAL. CONST. art. II, § 8; id. art. XVIII, §§ 1–4.
164
See Strauss, 46 Cal. 4th at 444.
165
See, e.g., Richard Albert, Nonconstitutional Amendments, 22 CAN. J.L. & JUR. 5,
22-23 (2009) [hereinafter Amendments] (calling the basic structure doctrine “curious,”
although suggesting some possible lines of defense); Jamie Cassels, Judicial Activism
and Public Interest Litigation in India: Attempting the Impossible?, 37 AM. J. COMP. L.
495, 501 n.34 (1989) (stating that basic structure doctrine “remains a highly
problematic and controversial element of Indian constitutional law”); Andrew B.
Coan, The Irrelevance of Writtenness in Constitutional Interpretation, 158 U. PA. L. REV.
1025, 1069-70 (2010) (declaring that Indian basic structure doctrine “lack[s] any
basis in original understanding”); Gary J. Jacobsohn, An Unconstitutional Constitution?
A Comparative Perspective, 4 INT’L J. CONST. L. 460, 487 (2006) (commenting that “if
ever confronted with the felt need to exercise this option, sober heads might well
wonder whether it was any longer worth doing”); Charles H. Koch, Jr., Envisioning A
Global Legal Culture, 25 MICH. J. INT’L L. 1, 58 n.268 (2003) (referring to the basic
structure doctrine as an “extreme example of judicial activism”).
166
Gary J. Jacobsohn, The Permeability of Constitutional Borders, 82 TEX. L. REV.
1763, 1799 (2004) (nonetheless suggesting possible justifications for the doctrine).
167
See Miguel Schor, The Strange Cases of Marbury and Lochner in the
Constitutional Imagination, 87 TEX. L. REV. 1463, 1477-80 (2009) (arguing that foreign
countries adopted easier amendment thresholds and other mechanisms partly because
of unrestrained fear of judicial power as expressed through Lochner).
2013] Abusive Constitutionalism 233
relatively easy (unlike in the United States), this is a real check on the
power of judicial review. But the unconstitutional-constitutional
amendments doctrine takes away this safety valve by allowing courts
to strike down even constitutional amendments. Such an approach
faces “obvious” problems from the standpoint of democratic theory.168
A focus on the practice of abusive constitutionalism suggests a
justification for the doctrine, and an advantage over the use of
constitutional tiers in the text. First, most constitutional orders are not
well-crafted to deal with the modern dangers to democracy — they
either fail to include tiered provisions at all or they tier the wrong
kinds of things such as expressivist provisions, as the South African
example shows.169 Second, even an ideally-crafted constitution, with
appropriate tiered provisions protecting key structural provisions,
would not fully prevent the problem of abusive constitutionalism.
Only certain limited parts of the constitution can be tiered; any
alternative design would lose many of the benefits of constitutional
flexibility. And would-be autocrats are experts in figuring out
alternative ways to achieve the same ends. The Hungarian example
illustrates the point with respect to the constitutional judiciary: rather
than replacing the Constitutional Court or changing its tenure rules,
the Fidesz simply added more positions to the Court, and therefore is
moving towards “packing” it.170
As Issacharoff has pointed out, the doctrine of unconstitutional-
constitutional amendments makes sense in such a world precisely
because of its flexibility — it allows judges to defend the
constitutional order without being constrained by the limits of
constitutional text.171 The core concerns of abusive constitutionalism
are useful as a potential anchor, helping to make its usage more
precise and justifiable. The claim is not that abusive constitutionalism
necessarily offers the sole justification for the doctrine’s use.172 My
168
Rosalind Dixon, Transnational Constitutionalism and Unconstitutional
Constitutional Amendments (May 2011) (unpublished manuscript) (on file with
author), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1840963.
169
See supra text accompanying notes 153–154.
170
See supra Part I.D.
171
See Samuel Issacharoff, Constitutional Courts and Democratic Hedging, 99 GEO.
L.J. 961, 1002 (2011) [hereinafter Courts] (noting that the basic structure approach
may be valuable because it may not be “apparent from the outset of a democracy
which provisions may prove to be central,” and that ex ante exposition of the
provisions may be impossible).
172
In contrast, uses in other areas often seem more problematic. For example, both
the Turkish and Indian Courts have suggested that “secularism” may be a basic part of
their respective constitutional orders. In Turkey, the Constitutional Court in 2005
234 University of California, Davis [Vol. 47:189
176
See CONSTITUCIÓN POLÍTICA DE COLOMBIA [C.P.] arts. 374-78 (explaining the
different processes for constitutional amendment, which require only a simple
majority legislative approval in the first round and an absolute majority in the
second).
177
See Indira Gandhi v. Raj Narain, A.I.R. 1975 S.C. 2299 (India) (expressing
broad disagreement within the judicial opinions about exactly what principles of the
basic structure a particular constitutional amendment violated); see also Albert,
Amendments, supra note 165, at 23 (noting that “the contours of the basic structure
doctrine remain unsettled”).
178
See generally Manoj Mate, Two Paths to Judicial Power: The Basic Structure
Doctrine and Public Interest Litigation in Comparative Perspective, 12 SAN DIEGO INT’L
L.J. 175, 183-88 (2010) (detailing the emergency in the context of the relevant
caselaw).
179
See Minerva Mills v. Union of India, (1980) 4 S.C.C. 222 (amendments
insulating nationalization and constitutional amendments from judicial review);
Indira Nehru Gandhi v. Shri Raj Narain, (1975) 2 S.C.C. 159 (amendments insulating
elections from judicial review); Kesavananda Bharati v. State of Kerala, A.I.R. 1973
S.C. 1461 (amendments insulating expropriation from judicial review); see also SUDHIR
KRISHNASWAMY, DEMOCRACY AND CONSTITUTIONALISM: A STUDY OF THE BASIC STRUCTURE
DOCTRINE 43-69 (2009).
236 University of California, Davis [Vol. 47:189
180
For an example, see Shri Raj Narain, 2 S.C.C. at 412 where the four justices
voting that the electoral amendment at issue violated the basic structure doctrine did
so using three different theories: democracy, equality, and structural encroachment on
judicial power.
181
See Raju Ramachandran, The Supreme Court and the Basic Structure Doctrine, in
SUPREME BUT NOT INFALLIBLE: ESSAYS IN HONOUR OF THE SUPREME COURT OF INDIA 107,
120 (B.N. Kirpal et al. eds., 2000).
182
See supra text accompanying notes 36–43.
183
See supra Part I. I do not of course seek to adopt any single definition of the
“people” for this purpose, nor do I take a position on whether such a definition is
possible. As others have noted, this is an extraordinarily difficult practical
undertaking, especially but not exclusively in multi-ethnic polities. See, e.g., Richard
S. Kay, Constituent Authority, 59 AM. J. COMP. L. 715, 738-43 (2011) (noting problems
that arise in determining whether a population is sufficiently coherent to be
considered one people). I merely argue that the use of the popular will by leaders such
as Chavez, Correa, and the Fidesz was problematic, and that they effectively wielded a
contestable claim into sweeping constitutional transformation.
2013] Abusive Constitutionalism 237
184
See supra Part I.
185
Cf. JOHN HART ELY, DEMOCRACY AND DISTRUST 181-82 (1980) (arguing for a
process-based defense of United States constitutional law, called “representation
reinforcement,” as a way to combat the counter-majoritarian difficulty).
186
Consider also the recent cases in India where the Court has used the basic
structure doctrine to limit efforts to set up a parallel system of administrative courts
separate from the ordinary judiciary and more dependent on the government. See
Ramachandran, supra note 181, at 122-23 (listing cases). It is true that this sort of
action could be used as part of a plan of abusive constitutionalism, but in the context
where the relevant provisions were struck down, there was no such threat.
187
See Corte Constitucional [C.C.] [Constitutional Court], Julio 22, 2011,
Sentencia C-574/11, Gaceta de la Corte Constitucional [G.C.C.] (Colom.), available at
http://corteconstitucional.gov.co/relatoria/2011/c-574-11.htm.
188
See Corte Constitucional [C.C.] [Constitutional Court], Agosto 27, 2009,
Sentencia C-588/09, Gaceta de la Corte Constitucional [G.C.C.] (Colom.), available at
238 University of California, Davis [Vol. 47:189
http://www.corteconstitucional.gov.co/relatoria/2009/C-588-09.htm.
189
See supra Part I.B.
190
See supra text accompanying notes 72–73.
191
See, e.g., Issacharoff, Courts, supra note 171, at 1010-11 (arguing that court
decisions do have bite in many difficult institutional contexts, although admitting that
courts sometimes fail to carry out this role or are ignored by other institutions).
192
Still, there are several well-known examples of these practices. In Belarus, the
competitive authoritarian President Alexander Lukashenko ignored constitutional
court rulings holding that he had violated the Constitution sixteen times during his
first two years in office. See LEVITSKY & WAY, supra note 25, at 79. In Russia, in
perhaps the best known example of judicial inefficacy, President Yeltsin closed down a
recalcitrant Constitutional Court after it held unconstitutional several of his decrees
relating to the constitutional process. See Epstein et al., supra note 96, at 136-37.
2013] Abusive Constitutionalism 239
193
In Venezuela, for example, the judiciary played some role in checking Chavez
early on in his presidency, but has lost its remaining independence through time. See
Raul A. Sanchez Urribarri, Courts Between Democracy and Hybrid Authoritarianism:
Evidence from the Venezuelan Supreme Court, 36 LAW & SOC. INQUIRY 854, 854 (2011).
194
See Vicki Jackson, Unconstitutional Constitutional Amendments: A Window into
Constitutional Theory and Transnational Constitutionalism, in DEMOKRATIE-
PERSPEKTIVEN: FESTSCHRIFT FUR BRUN-OTTO BRYDE ZUM 70. GEBURTSTAG 47, 60-62
(Michael Bauerle et al. eds., 2013) (“Tiered amendment procedures enforced through
substantive procedural review has the effect of making some provisions harder, but
not impossible, to amend, thereby ensuring constitutional justice commitments to
retain their democratic or consensual rooting.”).
195
See id. at 60.
240 University of California, Davis [Vol. 47:189
196
See supra text accompanying note 163.
197
See ACKERMAN, supra note 140, at 6-7 (1991) (“[A] dualist constitution seeks to
distinguish between two different decisions that may be made in a democracy. The
first is a decision by the American people; the second, by their government.”)
198
See KRISHNASWAMY, supra note 179, at 30 (noting that the Kesavananda court
made an important distinction between amendment and replacement).
2013] Abusive Constitutionalism 241
199
See, e.g., Corte Constitucional [C.C.] [Constitutional Court], Octubre 19, 2005,
Sentencia C-1040/05, Gaceta de la Corte Constitucional [G.C.C.] (Colom.), available
at http://www.corteconstitucional.gov.co/relatoria/2005/C-1040-05.htm.
200
The Colombian Constitution explicitly contemplates constitutional amendment
or replacement by Constituent Assembly. See CONSTITUCIÓN POLÍTICA DE COLOMBIA
[C.P.] art. 376.
201
See Landau, Constitution-Making, supra note 1, at 932.
202
See CARL SCHMITT, CONSTITUTIONAL THEORY 125-26 (Jeffrey Seitzer trans., 2008);
EMMANUEL JOSEPH SIEYES, WHAT IS THE THIRD ESTATE? 17 (1963). I do not mean to
imply that these two theories are identical; some important differences are discussed
in JOEL COLON RIOS, WEAK CONSTITUTIONALISM: DEMOCRATIC LEGITIMACY AND THE
QUESTION OF CONSTITUENT POWER 88 (2012).
203
See RIOS, supra note 202, at 1-2; see also Jon Elster, Forces and Mechanisms in the
Constitution-Making Process, 45 DUKE L.J. 364, 394-96 (1995) (arguing that
constitution-making via popular devices like constituent assemblies will produce a
better product and allow for more deliberation in the polity).
242 University of California, Davis [Vol. 47:189
204
See, e.g., BRUCE ACKERMAN, WE THE PEOPLE 2: TRANSFORMATIONS 11 (1998)
(carefully distinguishing the theory of original constituent power from his theory of
American constitutional transformation, and asserting that the former is the point
where “law ends, and pure politics (or war) begins”); Andrew Arato, Forms of
Constitution-Making and Theories of Democracy, 17 CARDOZO L. REV. 191, 230-31
(1995) (rejecting a “sovereign” model of constitution-making as overly majoritarian
and as not allowing for sequential learning). Arato has a highly-developed model of
“post-sovereign” constitution-making that relies on roundtable discussions and
external constraints by courts or other bodies. See ANDREW ARATO, CONSTITUTION
MAKING UNDER OCCUPATION 59-98 (2000). But this cooperation in his theory emerges
endogenously and is not a product of provisions in the existing constitutional text,
perhaps because he focuses on transitions from authoritarian regimes rather than
constitution-making within already-democratic regimes.
205
Rios and Hutchinson argue that references to “constituent power” have largely
disappeared from American constitutional theory. See Joel Colon-Rios and Allen
Hutchinson, Democracy and Revolution: An Enduring Relationship?, 89 DENV. U. L. REV.
593, 597 (2012). The assertion is more questionable both on the level of foreign
constitutional theory and comparative constitutional practice by courts and
politicians, where the doctrine remains popular. For some examples of the use of the
“original constituent power” doctrine from Latin America, see Landau, Constitution-
Making, supra note 1, at 965-66.
206
A striking example of this sort of vague, populist constitution-making language
occurs in Germany, where the Basic Law was explicitly thought to be a temporary text
to be replaced upon unification. The relevant clause states: “This Basic Law, which
since the achievement of the unity and freedom of Germany applies to the entire
German people, shall cease to apply on the day on which a constitution freely adopted
2013] Abusive Constitutionalism 243
213
The new Bolivian Constitution of 2009 has a replacement clause that does a
poor job of regulating the initiation of constitution-making, but is unusual in
attempting to regulate the constitution-making process along the lines suggested here.
The clause provides that an “original full-powered Constituent Assembly” may be
initiated by twenty percent of the electorate, an absolute majority of the Legislative
Assembly, or the President, and the proposal must be approved by referendum.
CONSTITUCIÓN POLÍTICA DEL ESTADO (CONST. BOL.) (2009), art. 411 (Bol.). This
structure, like that of Ecuador and Venezuela, is subject to populist manipulation by a
strong president. See supra note 204. However, the Bolivian Constitution also provides
that decisions of the Assembly must be taken by two-thirds majority, and then
approved in referendum. See CONST. BOL. (2009), art. 411. This kind of provision at
least gestures towards an effective regulation of the constitution-making process,
although it leaves key questions unanswered (such as the electoral rules used to select
an Assembly). A similar clause was in place when the 2009 Constitution was written,
and it may have helped to constrain an extremely messy process somewhat, producing
a consensus Constitution. See Landau, Constitution-Making, supra note 1, at 956-57
(noting that the rules were threatened at various points but ultimately followed).
214
See, e.g., Arato, Pathology in Iraq, supra note 209, at 538-49 (arguing for a post-
sovereign model of constitution-making); Landau, Constitution-Making, supra note 1,
at 934-38 (arguing for a model of constitutionalism that focuses on worst-case
outcomes — breakdowns of order or slides of democracy into competitive
authoritarian regimes); Partlett, supra note 89, at 237-38 (arguing that the Russian
experience shows the dangers of an unrestrained constitution-making process).
215
See, e.g., Epstein et al., supra note 96 (noting that the Russian Constitutional
Court, attempting to constrain Yeltsin during the Russian constitution-making
process, reached the limit of its zone of tolerance and was shut down).
246 University of California, Davis [Vol. 47:189
would risk falling afoul of the democracy clauses examined earlier and
would potentially cost regimes domestic and international legitimacy.
Clear regulation both of the conditions under which constitutional
replacement can occur and of the process that should be followed
during constitution-making should have at least some impact on
restraining abusive constitutionalism. It seems probable, for example,
that both the Fidesz in Hungary and Chavez in Venezuela would have
abided by more demanding constitutional rules if they had existed.
Both actors seemed wary of committing overtly illegal (as opposed to
legally ambiguous) acts.
A more substantial set of objections to constitutional replacement
clauses stems from the fact there are at least three kinds of lines that
may be difficult or impossible for such a clause to draw. First, it is
very difficult to distinguish “genuine” exercises of the popular will
from “false” or “manipulated” exercises. A replacement clause, in
preventing some “inauthentic” acts of constitution-making, would
likely also prevent some “authentic” acts. Second, as Sujit Choudry
has argued, there are situations that constitutions cannot properly be
understood to regulate, and yet it is very difficult to distinguish those
situations from ones that are properly understood as within the
existing constitutional order.216 There is a real risk that a replacement
clause might try and over-regulate, controlling situations that are
better dealt with outside the existing constitutional order. Finally, in a
more pragmatic vein, there are situations where it is better to replace
an existing constitution than maintain it. Constitutional longevity is
not an unalloyed good. Tom Ginsburg, Zachary Elkins, and James
Melton give an obvious example — the Lebanese Constitution of
1926, which set up a rigid power-sharing arrangement between
Muslims and Christians that broke down as demography changed, and
which was only resolved after a long civil war.217 Yet it would be
difficult for a replacement clause to distinguish situations where
replacement is unnecessary from situations where it is necessary, and
there is a risk that a replacement clause would maintain some bad
constitutions in place.
216
See Choudhry, supra note 141, at 229 (arguing that constitutional designers
must realize that there are points at which constitutionalism will inevitably fail).
Choudhry was speaking of Ackerman-style constitutional moments within a given
constitutional order, rather than replacements of constitutions.
217
See TOM GINSBURG ET AL., supra note 138, at 34-35 (noting a modest preference
in favor of constitutional stability in most circumstances, but acknowledging
situations in which constitutions should be replaced).
2013] Abusive Constitutionalism 247
218
See, e.g., Thomas M. Franck, The Emerging Right to Democratic Governance, 86
AM. J. INT’L L. 46, 46 (1992) (admitting that historically matters of internal governance
were outside the province of international law).
219
See, e.g., Fox & Nolte, supra note 109, at 6 (noting that “issues of domestic
governance [are moving] from the exclusive realm of national constitutional law and
enter[ing] the purview of international human rights law”); Franck, supra note 218
(arguing that democracy is in the process of becoming a principle of public
international law).
220
See International Covenant on Civil and Political Rights arts. 19, 22, 25, Mar.
23, 1976, 999 U.N.T.S. 171.
248 University of California, Davis [Vol. 47:189
221
G.A. Res. 60/1, ¶ 135, U.N. Doc. A/RES/60/1 (Oct. 24, 2005).
222
For some key contributions, see, for example, Fox & Nolte, supra note 109
(arguing that such a right is emerging); Franck, supra note 218 (likewise). See also
Gregory H. Fox, Democracy, Right to, International Protection, in MAX PLANCK
ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 35-36 (2012), available at http://
www.mpepil.com/subscriber_article?script=yes&id=/epil/entries/law-9780199231690-
e773&recno=1&author=Fox%20%20Gregory%20H (concluding that a right continues
to emerge but is hampered over disagreement about the definition of democracy and
because of regional differences); Gregory H. Fox & Brad R. Roth, Introduction: The
Spread of Liberal Democracy and its Implications for International Law, in DEMOCRATIC
GOVERNANCE AND INTERNATIONAL LAW 1, 2 (Gregory H. Fox & Brad R. Roth eds., 2000)
(“[I]t is now clear that international law and international organizations are no longer
indifferent to the internal character of regimes exercising effective control within
‘sovereign’ States.”); Marks, supra note 17, at 522-24 (arguing that the idea of such an
entitlement remains unsettled and problematic in international law).
223
I do not engage the controversial question of pro-democratic intervention. See,
e.g., Bruce Bueno de Mesquita & George Downs, Intervention and Democracy, 60 INT’L
ORG. 627, 647 (2006) (finding empirical data that democratic intervention is rarely
likely to make a positive contribution); Simone van den Driest, Pro-Democratic
Intervention and the Right to Political Self-Determination: The Case of Operation Iraqi
Freedom, 57 NED. INT’L L. REV. 29, 46-48 (2010) (arguing that democratic intervention
endangers international rights to self-determination).
2013] Abusive Constitutionalism 249
A. Democracy Clauses
In the Americas, as in Africa, and under documents governing the
Commonwealth countries, a major mechanism of enforcement is the
so-called “democracy clause.”224 These clauses provide that under
certain circumstances, a transition from a democratic to a non-
democratic regime will be punished by international actors in the
region. The Latin American version of the clause provides that a
country may be suspended from the Organization of American States
(“OAS”) if its “democratically constituted government has been
overthrown by force.”225 Other relevant documents in the OAS system
provide for suspension in the event of an “unconstitutional
interruption of the democratic order or an unconstitutional alteration
of the constitutional regime that seriously impairs the democratic
order in a member state.”226 The clause contained in the Charter of the
African Union similarly states that “[g]overnments which shall come
to power through unconstitutional means shall not be allowed to
participate in the activities of the Union,” and provides for sets of
sanctions against those regimes.227 Finally, the Commonwealth version
of the clause is triggered “particularly in the event of an
unconstitutional overthrow of a democratically elected government,”
and lays out a similar regime of sanctions.228 There is no doubt that
coups have fallen sharply in the historically coup-plagued regions
adopting these clauses, as they have worldwide.229 It is, however,
224
For a general discussion, see, for example, Theodore J. Piccone, International
Mechanisms for Protecting Democracy, in PROTECTING DEMOCRACY: INTERNATIONAL
RESPONSES 101, 101 (Morton H. Halperin & Mirna Galic eds., 2005).
225
Charter of the Organization of American States art. 9, Dec. 13, 1951, 119
U.N.T.S. 3.
226
Inter-American Democratic Charter art. 19, Sept. 11, 2001, 40 I.L.M. 1289,
available at http://www.oas.org/charter/docs/resolution1_en_p4.htm. Note that the
Inter-American Democratic Charter, while approved by the General Assembly of the
OAS, is not itself a treaty and thus has an uncertain status under international law.
See, e.g., Piccone, supra note 224, at 105 (noting that the Charter is not a treaty but “is
another step forward towards devising an inter-American system for preventing and
responding to breakdowns in democratic governance”).
227
Constitutive Act of the African Union art. 30, July 11, 2000, 2158 U.N.T.S. 3.
228
Millbrook Commonwealth Action Programme on the Harare Declaration art. 3,
Nov. 1995, available at http://www.thecommonwealth.org/Templates/Internal.asp?
NodeID=35800.
229
See CENTER FOR SYSTEMATIC PEACE, POLITY IV: REGIME AUTHORITY
250 University of California, Davis [Vol. 47:189
and from the country.232 Yet only the second action (which was viewed
by the international community as a clear “coup”) was perceived as a
danger to democracy, even though it was far from clear that it was the
more significant of the two threats.
Manuel Zelaya was elected president in 2006 as a member of one of
the country’s two major parties, but alienated both the opposition
party and elements of his own party as he pursued an increasingly
populist agenda and turned towards Venezuela’s Hugo Chavez. Zelaya
joined regional economic and foreign policy organizations created by
Chavez and criticized the existing political parties as corrupt and
illegitimate.233 The charge rang true in Honduras’ impoverished and
highly unequal economy, but it started to distance Zelaya from even
some members of his own party. Moreover, in 2008 Zelaya began to
take steps to replace the existing constitution. Following a playbook
that was similar to those already used in Venezuela, Bolivia, and
Ecuador, he argued that the existing text was discredited and obsolete,
and thus needed to be replaced with an updated text written at a new
constituent assembly.234 He was never particularly forthcoming about
what his plans for the new text were, but numerous commentators and
people around Zelaya suggested that at least one key purpose of the
Assembly would be to give Zelaya a second term in office.235
As in many cases involving abusive constitutionalism, the legality of
the steps pursued by Zelaya was unclear. The root problem is that the
Honduran Constitution, like most constitutions, has provisions for
232
I do not mean to imply that the democracy clause is the only mechanism in the
Americas that is designed to protect democracy. As has been detailed elsewhere, the
system also includes other mechanisms, especially Electoral Observation missions,
undertaken with the consent of a given country. See, e.g., Ruben M. Perina, The Role of
the Organization of American States, in PROTECTING DEMOCRACY: INTERNATIONAL
RESPONSES 127, 145 (Morton H. Halperin & Mirna Galic eds., 2005) (stating that
electoral observation missions are “one of the primary and most visible activities” of
the Unit for the Promotion of Democracy of the OAS). However, these mechanisms
also often prove problematic when dealing with competitive authoritarian regimes.
While such regimes may appear to have free and fair elections on the day of the
election itself, incumbents stack the deck between elections by controlling media,
financing, and other resources. See Steven Levitsky & Lucan Way, Why Democracy
Needs a Level Playing Field, J. DEMOCRACY, Jan. 2010, at 58-60.
233
See Feldman, Landau, Sheppard & Rosa-Suazo, supra note 5, at 10 (recounting
Zelaya’s efforts to join Petro Caribe and the Bolivarian Alternative for the Peoples of
Our America, both organizations controlled by Chavez).
234
See Buscan crear vacío de poder en Honduras, EL HERALDO (Hon.) (Jan. 17,
2009), http://archivo.elheraldo.hn/content/view/full/69737.
235
See id.
252 University of California, Davis [Vol. 47:189
amendment but not replacement.236 The text does not discuss the
conditions under which the existing Honduran constitutional order
may be replaced. Moreover, the Honduran Constitution contains
certain provisions that are alleged to be unamendable by any method
(the so-called “petrified” articles): one such provision limits presidents
to only one term in office.237 This added an additional layer of
complexity, because even if replacement per se would be
constitutional, it is possible that it would be found unconstitutional to
the extent that it amended the “petrified” clauses.238
At any rate, an administrative court issued a decision and several
subsequent orders requiring Zelaya to desist from carrying out the
non-binding referendum; appeals against this order to the Supreme
Court were not successful.239 Zelaya claimed that these orders were
themselves illegal, and pushed forward with his plans for a non-
binding referendum. Several days before the vote was to have been
held, his supporters broke into a military base and took ballots and
other materials needed to hold the vote.240 The OAS did not threaten
Zelaya under its democracy clause. Instead, the organization’s
Secretary General agreed — at Zelaya’s invitation — to send an
236
The relevant amendment provision provides that amendment may be
undertaken by a two-thirds vote in two consecutive ordinary sessions of the National
Congress. See CONSTITUCIÓN POLÍTICA DE LA REPÚBLICA DE HONDURAS (CONST. HOND.),
art. 373 (Hond.).
237
See CONSTITUCIÓN POLÍTICA DE LA REPÚBLICA DE HONDURAS (CONST. HOND.), art.
374 (Hond.) (“The prior article, the present one, the articles referring to the form of
government, the national territory, the presidential term, the prohibition on again
being President of the Republic by any citizen who has exercised it under any title,
and the reference to those who cannot be President of the Republic in the following
period may not be reformed.”); see also id. art. 239 (“The citizen who has exercised
the Executive Power may not be elected President or Vice-President of the Republic.
He who breaks this disposition or proposes its reform, along with those who support
him directly or indirectly, will immediately cease in the enjoyment of their respective
charges and will remain ineligible for ten years from exercising any public function.”).
238
Further, the steps proposed by Zelaya included few guarantees of a fair process.
For example, rather than having the Supreme Electoral Tribunal supervise a
supposedly non-binding referendum on whether to go forward with the Constituent
Assembly, as was customary for all national elections, Zelaya’s decree purported to put
supervision in the hands of the military and vote counting in the hands of the agency
that conducted the census. See Feldman, Landau, Sheppard & Rosa-Suazo, supra note
5, at 32-35.
239
See id. at 25-28.
240
‘Mel’ empieza a quedarse sin respaldo, EL HERALDO (Hon.) (June 26, 2009),
http://archivo.elheraldo.hn/content/view/full/156725.
2013] Abusive Constitutionalism 253
241
Note that the Secretary General referred to this mission as an “accompaniment
mission” rather than as a mission of “electoral observers.” See HUMAN RIGHTS
FOUNDATION, THE FACTS AND THE LAW BEHIND THE DEMOCRATIC CRISIS OF HONDURAS,
2009: A CONSTITUTIONAL AND INTERNATIONAL DEMOCRACY LAW ANALYSIS 109-10 (2010),
http://www.thehrf.com/HRF_TheFactsAndTheLaw_Honduras2009.pdf.
242
Michelleti sucede a ‘Mel,’ LA TRIBUNA (Hon.) (June 29, 2009), available at
http://old.latribuna.hn/2009/06/29/micheletti-sucede-a-”mel”/.
243
See id.
244
This congressional action was potentially problematic, because the Constitution
contained no provision allowing for congressional removal of the president or of other
officials. Only the Supreme Court, after criminal trial, had a clear power to remove a
president. CONSTITUCIÓN POLÍTICA DE LA REPÚBLICA DE HONDURAS (CONST. HOND.), art.
313, cl. 2 (Hon.).
245
See UN Backs Honduras Leader’s Return, BBC NEWS (June 30, 2009),
http://news.bbc.co.uk/2/hi/americas/8127503.stm (collecting condemnations issued by
government agencies, by the OAS, and by the United Nations General Assembly); see
also INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, HONDURAS: HUMAN RIGHTS AND
THE COUP D’ ETAT 1 (2009) (concluding that the events in Honduras constituted a
“coup”), available at http://www.cidh.org/pdf%20files/HONDURAS2009ENG.pdf.
246
See Ginger Thompson & Marc Lacey, O.A.S. Votes to Suspend Honduras Over
Coup, N.Y. TIMES (July 4, 2009), http://www.nytimes.com/2009/07/05/world/americas/
05honduras.html?pagewanted=all&_r=0.
254 University of California, Davis [Vol. 47:189
247
See ORG. AM. STATES, Press Release, Organization of American States, OAS
Suspends Membership of Honduras (July 5, 2009), http://www.oas.org/en/media_center/
press_release.asp?sCodigo=E-219/09.
248
See PETER J. MEYER, CONG. RES. SERV., HONDURAN-U.S. RELATIONS 16 (2013),
available at http://www.fas.org/sgp/crs/row/RL34027.pdf.
249
See OAS Lifts Honduras Suspension After Zelaya Agreement, BBC NEWS (June 1,
2011), http://www.bbc.co.uk/news/world-latin-america-13622939.
250
Few actors seriously contended, for example, that the military’s removal of
Zelaya was constitutional. However, the legality of certain actions surrounding the
removal has been more controversial. Actors have taken both sides of the question on
the issue of whether congress had the power to “separate” Zelaya from office. Compare
Feldman, Landau, Sheppard & Rosa-Suazo, supra note 5, at 57-61 (concluding that
the attempt was unconstitutional), and HUMAN RIGHTS FOUNDATION, supra note 241
(same), with Dixon & Jackson, supra note 231, at 174-80 (noting the disagreement in
evaluations of the congressional action), and Frank M. Walsh, The Honduran
Constitution is not a Suicide Pact: The Legality of Honduran President Manuel Zelaya’s
Removal, 38 GA. J. INT’L & COMP. L. 339 (2010) (concluding that removal power could
be implied under the circumstances).
2013] Abusive Constitutionalism 255
251
This is not to say that the OAS was unwarranted in sanctioning the removal.
There are still likely good reasons to sanction military interventions in politics.
Moreover, the action destabilized the country and led to some human rights abuses.
See, e.g., INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, supra note 245 (detailing the
use of states of exception and collecting evidence of human rights abuses).
252
See Piccone, supra note 224, at 122-23 (arguing that the clauses could be
utilized to cover cases of “democratic erosion” as well as sharp ruptures of the
democratic order such as coups).
253
See Dixon & Jackson, supra note 231, at 154-56 (developing the concept of
“extra-territorial” constitutional interpretation).
256 University of California, Davis [Vol. 47:189
254
See Paraguay: President Impeached, N.Y. TIMES (June 22, 2012), http://www.
nytimes.com/2012/06/22/world/americas/paraguay-president-impeached.html?_r=0.
255
See Lugo Denounces Removal from Paraguay Presidency as Coup, BBC NEWS (June
24, 2012), http://www.bbc.co.uk/news/world-latin-america-18569378.
256
See Stephen Schnably, Emerging International Law Constraints on Constitutional
Structure and Revision: A Preliminary Appraisal, 62 U. MIAMI L. REV. 417, 479-80
(2008) (noting that internal legal struggles can be “lethal” for democracy, but
expressing doubt that international intervention can work in a productive fashion).
257
See Schnably, Constitutionalism, supra note 18, at 198 (arguing that
“[c]onstitutional design is too fluid, too tied to each country’s own history, culture,
politics, and economics” to make a thicker consensus on democracy within the
Americas possible).
258
See Kim Lane Scheppele, Not Your Father’s Authoritarianism: The Creation of the
“Frankenstate,” EPS NEWSLETTER (Am. Political Sci. Ass’n, European Politics & Soc’y
Section), Winter 2013, at 5.
2013] Abusive Constitutionalism 257
259
The initial reviews are referred to as the Copenhagen Criteria. See ECONOMIC
ACCESSION CRITERIA, http://ec.europa.eu/economy_finance/international/enlargement/
criteria/index_en.htm.
260
See Scheppele, supra note 258, at 8. Note that the Venice Commission does
periodically offer opinions on various aspects of the legal and constitutional orders of
the Eastern European states, and has issued numerous opinions on the new Hungarian
constitutional order. See supra notes 75–78 and accompanying text. But the
Commission’s views have no legal effect, and it is part of the Council of Europe
system (which includes the European Court of Human Rights), rather than the
European Union.
261
See, e.g., Institute for Democracy and Electoral Assistance, International
Constitutional Court Proposed to Protect Democracy (May 4, 2013), http://www.idea.int/
wana/international-constitutional-court-proposed-to-protect-democracy.cfm (introducing
and evaluating the idea).
262
U.N. GAOR, 67th Sess., 12th, 13th, & 14th mtgs. (Sept. 27, 2012), available at
258 University of California, Davis [Vol. 47:189
http://www.un.org/News/Press/docs/2012/ga11295.doc.htm.
263
Id.
264
See Dixon & Jackson, supra note 231, at 174 (noting a number of potential
“downside risks” to the practice of “extraterritorial constitutional interpretation”).
265
See supra text accompanying notes 257–259 (discussing the possible creation of
an institution in Europe to carry out periodic reviews of the democratic orders of
European states, in the wake of the problems in Hungary).
2013] Abusive Constitutionalism 259
266
See supra text accompanying notes 71–74.
267
See supra text accompanying notes 75–77.
268
For an important recent contribution, see generally CONSTITUTIONAL DESIGN IN
DIVIDED SOCIETIES: INTEGRATION OR ACCOMMODATION? (Sujit Choudry ed., 2008)
(containing a number of essays with different models for accommodating difference
within constitutional orders).
269
In contrast, voting in multiethnic countries is often very stable, because
political interests break down relatively rigidly along ethnic lines. See HOROWITZ, supra
260 University of California, Davis [Vol. 47:189
note 172, at 196 (noting that political results in multiethnic societies can resemble a
“census”).